Search form

Featured Topics

To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

14 FLRA No. 97
DEPARTMENT OF THE NAVY
NORFOLK NAVAL BASE
NORFOLK, VIRGINIA
Respondent
and
MICHAEL DAVID CULP
Charging Party
Case No. 3-CA-1966
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain unfair labor practices as alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. The Judge further found that the Respondent
had not engaged in certain other alleged unfair labor practices and, in
effect, recommended dismissal of the complaint with respect to them.
Thereafter, the Respondent filed exceptions to the Judge's Decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order.
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Norfolk Naval Base; Norfolk, Virginia, shall:
1. Cease and desist from:
(a) Requiring any bargaining unit employee of the Norfolk Naval Base,
Norfolk, Virginia, to take part in an examination or investigative
interview in connection with an investigation, without union
representation, if such representation has been requested by the
employee, and if the employee reasonably believes that the examination
or investigative interview may result in disciplinary action against
such employee.
(b) Discriminating against Michael David Culp in any manner in order
to discourage membership in, or activities on behalf of, the American
Federation of Government Employees, AFL-CIO, Local 2225.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Expunge from Michael David Culp's personnel records, all copies
of a letter of reprimand dated February 24, 1981, addressed to Michael
David Culp by Assistant Fire Chief Fred T. Richardson, Norfolk Naval
Base, Norfolk, Virginia.
(b) Post at its facilities at the Norfolk Naval Base, Norfolk,
Virginia, copies of the attached Notice on forms to be furnished by the
Federal Labor Relations Authority. Such forms shall be signed by the
Commander of the Norfolk Naval Base, or his designee, and shall be
posted and maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
insure that such Notices are not altered, defaced, or covered by any
other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the portion of the complaint in Case No.
3-CA-1966 found not to have violated the Statute be, and it hereby is,
dismissed.
Issued, Washington, D.C., May 24, 1984
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
Chairman Mahone, concurring:
I agree with my colleagues and the Administrative Law Judge, that
under the particular facts of this case, /1A/ the Charging Party's
belief that the investigatory examination was likely to result in the
imposition of discipline, was reasonable. Accordingly, pursuant to
section 7114(a)(2)(B) of the Statute, he was entitled to insist upon
having a union representative present at such an interview, and any
disciplinary action taken against him for his refusal to submit to the
interview in the absence of a union representative would result in the
violation of section 7116(a)(1) and (8).
However, I am writing separately in order to stress that our decision
today does nothing to change the requirement that the reasonableness of
the belief be based on objective rather than subjective criteria. In
this regard, it must be emphasized that, in the usual case, when the
management representative who is about to conduct the interview gives
assurances to the employee that the imposition of discipline is not
contemplated, then that employee's continued belief to the contrary can
only be characterized as subjective, and therefore, unreasonable. Under
such circumstances, the employee's refusal to proceed with the interview
in the absence of a union representative would no longer be protected
conduct, and any disciplinary action imposed on the basis of such a
refusal would be justified.
Issued, Washington, D.C., May 24, 1984
Barbara J. Mahone, Chairman
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT require any bargaining unit employee of the Norfolk Naval
Base, Norfolk, Virginia, to take part in an examination or investigative
interview in connection with an investigation, without union
representation, if such representation has been requested by the
employee, and if the employee reasonably believes that the examination
or investigative interview may result in disciplinary action against
such employee.
WE WILL NOT discriminate against Michael David Culp in any manner in
order to discourage membership in, or activities on behalf of, the
American Federation of Government Employees, AFL-CIO, Local 2225.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees of the Norfolk Naval Base, Norfolk, Virginia, in the
exercise of their rights assured by the Federal Service Labor-Management
Relations Statute.
WE WILL expunge from Michael David Culp's personnel records all
copies of a letter of reprimand dated February 24, 1981, addressed to
Michael David Culp by Assistant Fire Chief Fred T. Richardson, Norfolk
Naval Base, Norfolk, Virginia.
(Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region III, Federal Labor Relations Authority, whose address
is: 1111 18th Street, Room 700, P.O. Box 33758, Washington, D.C.
20033-0758 and whose telephone number is: (202) 653-8507.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 3-CA-1966
Dennis K. Reischl
For the Respondent
Sharon Prost, Esquire
Peter Robb, Esquire
For the General Counsel
Before: LOUIS SCALZO
Administrative Law Judge
DECISION
Statement of the Case
This case arose as an unfair labor practice proceeding under the
provisions of the Federal Service Labor-Management Relations Statute, 92
Stat. 1191, 5 U.S.C. 7101 et seq. (hereinafter referred to as "the
Statute"), and the Rules and Regulations issued thereunder.
It was alleged in the complaint that the Department of the Navy,
Norfolk Naval Base, Norfolk, Virginia (Respondent), failed to comply
with Section 7114(a)(2)(B) of the Statute by issuing a February 24, 1981
letter of reprimand to Mr. Michael D. Culp (Charging Party), a GS-5
Firefighter, assigned to Station 1, Norfolk, Naval Base, because Mr.
Culp refused a January 23, 1981 request to go to the office of Station
Chief J. R. Davis, unaccompanied by a Union representative, for the
purpose of participating in a discussion with Station Chief Davis
concerning Mr. Culp's job performance and job attitude. The issuance of
the reprimand was alleged to constitute an unfair labor practice within
the meaning of Section 7116(a)(1), (2) and (8) of the Statute.
It was also alleged that the Respondent failed to comply with Section
7114(a)(2)(B) of the Statute by refusing to allow Mr. Culp and a Union
representative a reasonable time in which to confer prior to attending a
meeting with Station Chief Davis concerning Mr. Culp's earlier refusal
to participate in the discussion, and further that the failure to permit
time to confer constituted an unfair labor practice within the meaning
of Sections 7116(a)(1), and (8) of the Statute. /1/
Counsel representing the Respondent moved for dismissal of the
complaint on the ground that none of the allegations raised in the
complaint were first raised by the Charging Party in a charge or amended
charge. Counsel representing the Respondent also argued that Mr. Culp
could have had no reasonable belief that the discussion sought by
Station Chief Davis might result in disciplinary action against him, and
that as a result, his refusal to meet with the Station chief was not
protected under the provisions of Section 7114(a)(2)(B). In response to
the alleged failure to allow time to confer with a Union representative
it was argued that the Respondent had no obligation under the provisions
of Section 7114(a)(2)(B) to allow Mr. Culp time in which to confer with
a Union representative in advance of meeting scheduled merely to
announce a pending disciplinary action. Respondent argued that counsel
for the General Counsel failed to sustain the burden of proving the
alleged unfair labor practices by a preponderance of the evidence.
The parties were represented by counsel during the hearing, and were
afforded full opportunity to be heard, adduce relevant evidence, and
examine and cross-examine witnesses. Post-hearing briefs were received
from counsel representing the General Counsel and counsel representing
the Respondent. These have been duly considered. Based upon the entire
record herein, including my observations of the witnesses and their
demeanor, the exhibits and other relevant evidence adduced at the
hearing, /2/ and the briefs, I make the following findings of fact,
conclusions and recommendations:
Findings of Fact
Employee Insubordination Reported to Station Chief Davis
During the morning of January 23, 1981, Lead Firefighter (Captain)
Donald Wilson instructed Mr. Culp to perform certain duties involving
stripping and waxing floors in the watch office and kitchen of Fire
Station 1, Norfolk Naval Base. (Tr. 29-30, 121). Captain Wilson also
assigned certain unspecified duties of a similar nature to Firefighter
David Tindel. (Tr. 128-129). A dispute arose between Captain Wilson
and Mr. Culp, and between Captain Wilson and Mr. Tindel, concerning the
performance of work assigned. A heated discussion lasting "a few
minutes" ensued between Mr. Culp and Captain Wilson while the work was
being performed. (Tr. 30-32). The exchange involved threatening words
uttered by both participants (Tr. 31-32), and was not like any other
earlier discussion had by Captain Wilson and Mr. Culp. (Tr. 31-32).
/3/ Mr. Tindel also made remarks constituting insubordination to Captain
Wilson. (Tr. 123, 128, 137). Mr. Tindel admitted making "hot-tempered"
remarks that he should not have made (Tr. 131), and that his exchange
with Captain Wilson was serious in nature. (Tr. 132). At least some of
Mr. Tindel's insubordination occurred in the presence of Mr. Culp. (Tr.
31-32).
As a result of the insubordination described, Captain Wilson reported
details of his encounters with Mr. Culp and Mr. Tindel to Station Chief
Davis (Tr. 122) and requested Chief Davis to meet with the two
employees. He testified:
I just asked him if he would have a talk, and if there was a a
problem, to get it in the air and find out what was going on.
(Tr. 124).
Station Chief Davis described Captain Wilson's report in similar
terms, and indicated that Captain Wilson's problem with Mr. Culp had
been a continuing one. (Tr. 89-90, 110). Station Chief Davis testified
that he hoped to have a discussion with Mr. Culp concerning Mr. Culp's
insubordination, but that he did not then contemplate disciplinary
action. (Tr. 107-108).
It was established that in cases involving insubordination it was a
normal procedure to inquire into the matter for the purpose of
determining appropriate action. (Tr. 118, 147). Insubordination by
firefighters toward lead firefighters was considered a potentially
serious matter. It was felt that disobedience could possibly result in
loss of life during firefighting activity. (Tr. 111-112).
Station Chief Davis Takes Action to Inquire Into Reports of
Insubordination
Later in the morning of January 23rd, Station Chief Davis asked
Captain Wilson to summon Mr. Tindel to his office. (Tr. 138). Mr.
Tindel knew, without his having to ask, that he was being summoned
because of his insubordination earlier that morning. (Tr. 139).
Station Chief Davis made inquiry concerning his conduct, received Mr.
Tindel's response, and then admonished him. (Tr. 90-91, 114, 116,
124-126, 132). In concluding his meeting with Mr. Tindel, Station Chief
Davis requested him to ask Mr. Culp to report to him. While enroute
down a flight of stairs leading to the upstairs section of the Fire
Station where the Station Chief's office was located, Mr. Tindel told
Mr. Culp that he had been admonished and that Station Chief Davis wanted
to see him. (Tr. 32-33). /4/ Because Mr. Culp did not report
immediately, Captain Wilson was dispatched by Station Chief Davis to
summon Mr. Culp. (Tr. 91-92, 125-126, 134). Captain Wilson was told by
Mr. Culp that he (Mr. Culp) was trying to contact a Union
representative. (Tr. 134). Captain Wilson then proceeded back upstairs
toward Station Chief Davis' office and Mr. Culp followed a few minutes
later. (Tr. 134). There was no indication that Captain Wilson denied
or otherwise advised Mr. Culp that a Union representative would not be
needed.
Station Chief Davis and Captain Wilson were waiting for Mr. Culp in
Chief Davis' office. (Tr. 34). Mr. Culp became apprehensive when he
saw them. Due to the circumstances, particularly the fact that he had
never been summoned to Station Chief Davis' office before (Tr. 104,
113), he worried that some administrative action might be taken against
him (Tr. 34-35). /5/
Chief Davis started to explain the purpose of the meeting, but Mr.
Culp stated that he wanted to have a Union representative present during
the meeting (Tr. 34, 92, 97, 125-126). Mr. Culp testified that Chief
Davis agreed at this point to allow a Union representative to be
present, and that he then left and went downstairs. (Tr. 34). Station
Chief Davis testified that he instructed Mr. Culp to "wait right here
and let me go see", and that he did not give Mr. Culp permission to have
a Union representative present. (Tr. 92, 97). Captain Wilson's
testimony differed substantially from that of Station Chief Davis. He
related that Station Chief Davis made no response at all, and that Mr.
Culp left them and went downstairs. (Tr. 125-126).
On the basis of the record it is possible to conclude that Mr. Culp's
request for a Union representative was not immediately questioned by
Station Chief Davis, although conflict exists concerning whether Station
Chief Davis acquiesced when Mr. Culp said that he would not attend the
meeting unaccompanied by a Union representative.
Request Made for Union Representative to Attend Meeting and
Subsequent Cancellation of Request by Respondent
Mr. Culp requested that Mr. Jack Overby, Chief Steward of American
Federation of Government Employees, AFL-CIO, Local 2225, be made
available for the meeting with Station Chief Davis. (Tr. 28). Local
2225, is the exclusive bargaining representative of firefighters
employed at the Norfolk Naval Base. Mr. Culp made the request by
phoning Station Chief B. R. Todd, the supervisor in charge of Fire
Station 3, as Mr. Overby worked in Fire Station 3 under Station Chief
Todd. (Tr. 35-37). Chief Todd agreed to see that Mr. Overby attended
the meeting. A few minutes later Chief Todd phoned Mr. Culp and warned
him not to attend the meeting with Station Chief Davis until Mr. Overby
arrived to assist Mr. Culp. (Tr. 36-38, 49).
Chief Todd informed Mr. Overby early in the afternoon of January 23rd
that he was needed by Mr. Culp at Fire Station 1. (Tr. 63-64). While
enroute to Fire Station 1, Mr. Overby was instructed by radio to return
to Fire Station 3. (Tr. 63-65). Upon his return Station Chief Todd
told Mr. Overby to return to work. (Tr. 65). The record disclosed that
Assistant Fire Chief Umphlett, who was Station Chief Davis' supervisor,
admitted that he canceled Mr. Culp's earlier request that Mr. Overby be
allowed to go to Fire Station 1 to represent Mr. Culp during the meeting
with Station Chief Davis. (Tr. 97-98).
Basis of Disciplinary Action Taken
Station Chief Davis sought counsel from his supervisor, Assistant
Fire Chief Umphlett, when Mr. Culp refused to meet with him. (Tr.
92-93). Assistant Chief Umphlett asked whether disciplinary action was
contemplated, and when told that such was not intended, Chief Umphlett
noted that under the terms of the collective bargaining agreement, Mr.
Culp was not entitled to a Union representative unless disciplinary
action was intended. He recommended that Station Chief Davis advise Mr.
Culp of this, and then, "see if he'll come up to your office." (Tr.
93-94).
Station Chief Davis approached Mr. Culp with a copy of the collective
bargaining agreement in his hand. He advised Mr. Culp that according to
the agreement he did not need a representative, that no disciplinary
action was contemplated, and that he just wanted to talk to Mr. Culp.
(Tr. 38, 50-51, 94-95, 134-135, 142-143). Mr. Culp insisted upon a
Union representative being present, and stated that he would attend when
the representative requested arrived. (Tr. 39, 135, 143). Station
Chief Davis informed Mr. Culp three or four times that he was refusing
(Tr. 39), advised him that he was failing to obey orders (Tr. 94-95),
and gave Mr. Culp a direct order to go to his (Station Chief Davis')
office to discuss the matter. (Tr. 135). Mr. Culp insisted that he was
not refusing and that he would go when the representative arrived. (Tr.
39).
Station Chief Davis again sought advice from Assistant Chief
Umphlett, who in turn sought counsel from those higher in the chain of
command. (Tr. 95-96). They were advised to arrange a meeting with Mr.
Culp to inform him that a proposed disciplinary action would be filed
against him for failing to comply with a verbal order. (Tr. 96). Mr.
Culp was then informed by Station Chief Davis that Mr. Culp would, at
this point, need a Union representative, that Mr. Overby would be
summoned, and that the matter was turning into a disciplinary action for
failing to obey a direct order. (Tr. 41, 96). Station Chief Davis
phoned Station Chief Todd and requested that Mr. Overby be allowed to
represent Mr. Culp. (Tr. 98).
Mr. Culp Formally Advised of Proposed Disciplinary Action and
Disciplinary Action Taken
The Charging Party contends that upon the arrival of Mr. Overby,
Station Chief Davis ordered him and Mr. Overby to his office
immediately, and that a request made by Mr. Culp for time to explain the
situation to Mr. Overby was refused. (tr. 41-42). Mr. Overby's
testimony was similar except that he could not recall whether he or Mr.
Culp made the initial request for time in which to confer. (Tr. 68-69,
74-75). Station Chief Davis testified that he asked Mr. Overby and Mr.
Culp if they were ready, that he received an affirmative response from
them, and that they then all went up to Station Chief Davis' office.
(Tr. 98, 99). He denied that there was any request to confer prior to
his meeting with Mr. Overby and Mr. Culp. (Tr. 99). Captain Wilson and
Mr. Tindel corroborated Chief Davis in part. (Tr. 127-128, 136, 143,
145-146). However, Captain Wilson stated that he did not hear anything
that was said between Station Chief Davis, Mr. Overby and Mr. Culp
before they proceeded upstairs. (Tr. 130). Although it is not
necessary to decide this factual issue, it is nevertheless determined
that the testimony of Mr. Culp and Mr. Overby should be credited. This
conclusion is reached as a result of Captain Wilson's statement that he
heard no conversation of the type described by Station Chief Davis,
before the group proceeded upstairs; on the fact that such a request
would have been made in the normal course of events; on proof of the
expedited arrangements made by Station Chief Davis to schedule a meeting
with Mr. Overby in attendance; and lastly on factors relating to the
demeanor of witnesses.
The witnesses for the General Counsel and Charging Party all
testified that at the meeting which followed, Station Chief Davis
announced that he planned to recommend that Culp be disciplined for
failing to comply with a direct order, and that Station Chief Davis then
refused repeated requests to discuss details of the matter, or to
respond to questions concerning the subject. It was conclusively
established that Station Chief Davis asked no questions and made no
inquiry concerning Mr. Culp's alleged insubordination. (Tr. 73).
On February 24, 1981, Mr. Culp received a letter of reprimand from
Assistant Fire Chief Fred T. Richardson, Norfolk Naval Base, for delay
in carrying out Station Chief Davis' instructions on January 23, 1981.
(G.C. Exh. 2). It included the following as a basis for the reprimand:
At approximately 1420 on 23 January 1981, Station 1 Fire Chief
J. R. Davis instructed you to come to his office. Chief Davis
wanted to discuss with you job performance and attitude toward
your job. You informed Chief Davis that you would not see and
talk with him unless you had your union representative with you.
Chief Davis told you that he did not think it was necessary to
have a representative present. Chief Davis again instructed you
to come to his office, to which you replied, "I will when my union
representative comes, and he has not come yet." You did not report
to Chief Davis' office as you were instructed to do.
It was ordered that a copy of the reprimand be filed in Mr. Culp's
Official Personnel Folder for a period not to exceed two years.
Discussion and Conclusions
With respect to Respondent's motion to dismiss the complaint on the
ground that none of the allegations raised in the complaint were first
raised by the Charging Party in a charge or amended charge, it is noted
that the charge, insofar as it is pertinent here, alleged that the
Respondent, through the conduct of Station Chief Davis on January 23,
1981, failed to comply with the provisions of Section 7114(a)(2)(B)(ii),
and violated Sections 7116(a)(1) and (8), by refusing to discuss with
Mr. Culp and a Union representative, a disciplinary action which Station
Chief Davis intended to initiate against Mr. Culp. /6/
In Defense Logistics Agency, 5 FLRA No. 21 (February 12, 1981), the
Authority adopted the following language to describe the nature and
function of a charge:
In the private sector, the Supreme Court and many Circuit
Courts have upheld the NLRB's view that a charge is not a pleading
and does not require the specificity of a pleading. It merely
serves to initiate Board investigation to determine whether a
complaint shall be issued (citing authority). (Administrative Law
Judge Decision at page 19, footnote 19).
It does not appear that the Authority has yet ruled specifically on
the degree of relationship required between allegations in a
pre-complaint charge and allegations in a complaint. In a case arising
under the Executive Order, the Assistant Secretary approved an
Administrative Law Judge decision holding that the inclusion of an
allegation in a complaint when not previously included in the charge, is
permitted so long as it is "even rather remotely encompassed by any
language of the original charge. . . ." Department of the Air Force
Headquarters, Air Force Flight Test Center, Edwards Air Force base,
California, A/SLMR 255 (March 14, 1973).
In a Statute case now pending before the Authority, Administrative
Law Judge Burton S. Sternberg noted the following on the basis of
private sector authority:
"(I)t is well established that a complaint need not be confined
to . . . the specific matters set forth in a charge. Additional
allegations may be included in a complaint as long as such
allegations bear a relationship to the charge and are closely
related to the events complained of in the charge. /7/
In this case events leading to pertinent portions of the charge, and
the allegations of the complaint, emanated from Mr. Culp's January 23,
1981, refusal to respond to Chief Davis' directive to go to Station
Chief Davis' office unaccompanied by a Union representative. Both the
charge and the complaint pertain to elements of the factual picture
developed as a result of Mr. Culp's refusal. The conduct of Station
Chief Davis and Mr. Culp is involved in the allegations set forth in the
charge and in the allegations of the complaint. The proposal to
discipline Mr. Culp is a common factual segment of both, and the charge
and the complaint refer to a failure to comply with the provisions of
Section 7114(a)(2)(B) with respect to conduct arising out of Chief
Davis' handling of the unsuccessful effort to compel Mr. Culp to go to
the meeting unaccompanied by a Union representative. Inasmuch as the
events alleged in the charge and the complaint are closely related, no
basis exists for dismissal of the allegations of the complaint on the
ground that they were not set forth in the charge.
Sections 7116(a)(1), (2) and (8) of the Statute provide:
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
(2) to encourage or discourage membership in any labor
organization by discrimination in connection with hiring, tenure,
promotion, or other conditions of employment;
. . . .
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
Section 7102 of the Statute sets forth certain employee rights
including the right to form, join, or assist any labor organization, or
to refrain from any such activity, freely and without fear of penalty or
reprisal, and further that each employee shall be protected in the
exercise of such right. Section 7114(a)(2)(B) provides:
(2) An exclusive representative of an appropriate unit in an
agency shall be given the opportunity to be represented at--
. . . .
(B) any examination of an employee in the unit by a
representative of the agency in connection with an investigation
if--
(i) the employee reasonably believes that the examination may
result in disciplinary action against the employee; and
(ii) the employee requests representation.
The threshold question posed in this case is whether Station Chief
Davis sought to subject Mr. Culp to an "examination" within the meaning
of Section 7114(a)(2)(B). That is, a determination as to whether
violations of Section 7116(a)(1), (2) and (8) occurred depends upon
whether or not Mr. Culp's insistence upon the presence of a Union
representative involved a right protected by Section 7114(a)(2)(B).
The legislative history of Section 7114(a)(2)(B) discloses that it
was enacted in response to the decision of the Supreme Court in National
Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959
(1975). Weingarten held, inter alia, that under the National Labor
Relations Act an employee has the right to the presence of a union
representative at "an investigative interview which he reasonably
believes may result in the imposition of discipline." Prior to the
enactment of the Statute there existed no comparable right under
Executive Order 11491, to representation during an investigative
interview. This is spelled out in Federal Labor Relations Council
Statement on Major Policy Issue No. 75P-2 (December 2, 1976), 4 FLRC
709.
The Authority has determined that only objective facts relating to
the interview of an employee, as distinct from an employee's subjective
feelings, may be considered in answering whether an employee reasonably
believed that discipline might result from the interview. Internal
Revenue Service, Washington, D.C., and Internal Revenue Service,
Hartford District Office, 4 FLRA No. 37 (September 26, 1980); Lackland
Air Force Base Exchange, Lackland Air Force Base, Texas, 5 FLRA No. 60
(April 17, 1981). Also, the mere characterization of a meeting as a
"counseling session" would not operate to remove it from the protection
of the Statute. Federal Aviation Administration, St. Louis Tower,
Bridgeton, Missouri, 6 FLRA No. 116 (September 24, 1981). In the
Federal Aviation Administration case the Authority held that the
designation of a meeting as "an interview, investigation or counseling,"
is immaterial, and that an employee is entitled under Section
7114(a)(2)(B), to union representation whenever the circumstances
underlying a meeting make it reasonable to envision that a discussion of
an employee's conduct might lead to discipline.
The facts adduced in this case indicate that an "investigation"
within the meaning of Section 7114(a)(2)(B) was initiated by Station
Chief Davis following Captain Wilson's report of insubordination on the
part of Mr. Culp and Mr. Tindel. Captain Wilson asked Station Chief
Davis to inquire into the matter. Mr. Culp's prior insubordination had
been a continuing problem to management. Station Chief Davis
acknowledged that although he did not then contemplate taking any
disciplinary action, he wanted to inquire into the allegations made by
Captain Wilson, and that such an inquiry was needed to determine
appropriate action. Such investigations or inquiries were a normal
procedure in such cases, as insubordination by firefighters was
considered a serious matter generally, and one which could result in
loss of life on the job. On the basis of the foregoing it is clear that
an investigation into the conduct of Mr. Culp was in progress when Mr.
Culp was summoned to Station Chief Davis' office by Mr. Tindel, and
Captain Wilson.
The record also discloses that Station Chief Davis sought to subject
Mr. Culp to an examination in connection with the investigation.
Respondent does not dispute the fact that Station Chief Davis sought to
question Mr. Culp concerning the alleged misconduct reported by Captain
Wilson. It also appeared that objective facts in the record indicate
that Mr. Culp reasonably believed that the examination sought might
result in disciplinary action against him. Mr. Culp was aware of his
own insubordination and that of Mr. Tindel. Being an experienced
firefighter, he would necessarily have been aware of the serious nature
of insubordination in the type of work being performed. He was advised
by Mr. Tindel that Station Chief Davis wanted to see him, and further
that Mr. Tindel had been admonished in connection with the matter. The
seriousness of the inquiry was emphasized by Captain Wilson's request
that he report to Station Chief Davis' office, by the fact that he had
never before been summoned to Station Chief Davis' office, and by the
fact that he had experienced an earlier confrontation with Captain
Wilson. These factors also tended to tie tightly together his
perceptions concerning the underlying reason for the summons, since Mr.
Tindel and Captain Wilson were the other principal actors in the
conflict which had erupted earlier that day.
Captain Wilson's failure to respond to Mr. Culp's statement that he
(Mr. Culp) was trying to contact a Union representative would have
provided no assurance whatsoever that the inquiry was less serious than
Mr. Culp envisioned, and the picture of Captain Wilson and Station Chief
Davis awaiting Mr. Culp's arrival in Chief Davis' office quite naturally
would have led to a strengthening of his belief that the examination
might result in disciplinary action.
It appeared that although a serious factual dispute exists as to
whether Station Chief Davis acquiesced when Mr. Culp initially requested
that a Union representative be present, the record does indicate that
nothing was then said by Station Chief Davis which could have served to
lessen Mr. Culp's concern and apprehension. Assuming Station Chief
Davis' version of the facts to be true, it must be concluded that
Station Chief Davis' reaction could conceivably have served to provide
an additional basis for Mr. Culp's concern.
The final element leading Mr. Culp to a conclusion that he was in
danger of disciplinary action is reflected in the fact that Station
Chief Todd instructed Mr. Culp not to attend the meeting with Station
Chief Davis without a Union representative. This advice, emanating as
it did from the same relative management level as that from which
Station Chief Davis was speaking, would have necessarily provided an
additional basis for Mr. Culp's belief.
Under the circumstances outlined it is immaterial that Respondent
reached the conclusion that the Union had no right to be represented.
Station Chief Davis' position was a legal one. He advised Mr. Culp that
since no formal disciplinary action was then intended, Mr. Culp was not
entitled to a representative. /8/ This argument neglects to take into
consideration the fact that the results of the examination of Mr. Culp
were then unknown, and further that from Mr. Culp's point of view it
would have been important to have representation during the
investigative stage, when possible administrative decisions were being
formulated. Station Chief Davis merely said that disciplinary action
was not then contemplated. This points out the obvious. Seldom, if
ever, is disciplinary action contemplated at the outset of an inquiry.
Here, the facts indicated that the reason for the examination was to
receive Mr. Culp's side of the story. Neither Mr. Culp, nor Station
Chief Davis had any way of knowing the final results of his inquiry, or
the disposition of the matter, prior to the examination of Mr. Culp.
Moreover, Mr. Culp received no firm assurance that his statements during
the interview would not lead to disciplinary action against him.
There was an affirmative obligation on the part of the Respondent to
provide the exclusive representative an opportunity to be present during
the examination, and an affirmative obligation to take no administrative
action to otherwise interfere with the exercise of this right. Lackland
Air Force Base Exchange, Lackland Air Force Base, Texas, supra; U.S.
Department of the Navy, U.S. Marine Corps, Marine Corps Logistics Base,
Albany, Georgia, 4 FLRA No. 54 (September 30, 1980). On the basis of
the foregoing it is concluded that the failure to provide an opportunity
for the exclusive representative to be represented at the examination
under circumstances outlined herein constituted a failure to comply with
the provisions of Section 7114(a)(2)(B). Since disciplinary action
taken against Mr. Culp related closely to Mr. Culp's insistence upon
Section 7114(a)(2)(B) rights, it must also be concluded that the
disciplining of Mr. Culp also constituted a failure to comply with
Section 7114(a)(2)(B).
It follows therefore that the taking of disciplinary action against
Mr. Culp violated Section 7116(a)(1) in that it interfered with,
restrained, and coerced Mr. Culp in his exercise of rights provided in
Section 7102 of the Statute. The same conduct constitutes a violation
of 7116(a)(8) in that it represents a failure on the part of the
Respondent to comply with the provisions of Section 7114(a)(2)(B).
In order to establish a violation of Section 7116(a)(2) there must be
a showing that the alleged victim of discrimination was engaging in
protected activity, that the agency had knowledge of such activity, and
that the agency took action because of anti-union animus. United States
Department of Labor, 1 FLRA No. 120 (September 28, 1979); Veterans
Administration Center, Leavenworth, Kansas, 1 FLRA No. 111 (September
20, 1979); U.S. Customs Service, Region IV, Miami, Florida, 1 FLRA No.
108 (September 13, 1979). The element of discriminatory motivation
needed to establish a Section 7116(a)(2) violation may be inferred from
circumstantial evidence. U.S. Customs Service, Region IV, Miami,
Florida, supra, Veterans Administration Center, Leavenworth, Kansas,
supra.
The Authority has also held that in examining discrimination where an
employee asserts a facially lawful business justification for the
alleged discriminatory action, it would examine such cases through an
analysis similar to that used by the United States Supreme Court in Mt.
Healthy City School District Board of Education v. Doyle, 529 U.S. 274
(1977) (involving conduct protected by the United States Constitution).
The Authority stated that the burden is on the General Counsel to make a
prima facie showing that the employee had engaged in protected activity
and that the prohibited conduct was a motivating factor in the
administrative action taken by the agency. Once this is established,
the agency may avoid responsibility only by showing by a preponderance
of the evidence that it would have reached the same decision or taken
the same action even in the absence of protected activity. Internal
Revenue Service, Washington, D.C., 6 FLRA No. 23 (June 17, 1981);
Veterans Administration, Medical and Regional Office Center, White River
Junction, Vermont, 6 FLRA No. 68 (August 5, 1981).
In this case disciplinary action was taken ostensibly because Mr.
Culp refused to attend the examination; however, the record is clear
that he did not refuse to attend the examination. He refused to attend
unless a right accorded under Section 7114(a)(2)(B) was first recognized
and extended to him. Since his refusal was wedded to his insistence on
the Section 7114(a)(2)(B) right, it must be concluded that disciplinary
action taken against Mr. Culp was predicated, at least in part upon Mr.
Culp's insistence upon a protected right, and not solely because of Mr.
Culp's refusal to respond to Station Chief Davis' order to participate
in the examination.
This is further evidenced by the fact that Station Chief Davis became
incensed by Mr. Culp's continued insistence upon the presence of a Union
representative, by statements made in an attempt to compel Mr. Culp to
attend without a Union representative, and by the apparent causal
relationship between Mr. Culp's insistence upon his right, and Station
Chief Davis' immediate initiation of steps leading to the subsequent
reprimand of Mr. Culp. Since there was no showing by Respondent that
the questioned disciplinary action would have been taken against Mr.
Culp even if Mr. Culp had not been engaged in protected activity, it
follows that the Respondent's conduct also constituted an unfair labor
practice violative of Section 7116(a)(2) of the Statute. Internal
Revenue Service, Washington, D.C., supra.
Turning to allegations that the Respondent failed to comply with
Section 7114(a)(2)(B) of the Statute by refusing to allow Mr. Culp and
Mr. Overby reasonable time to confer prior to attending their meeting
with Station Chief Davis, it is noted that Section 7114(a)(2)(B) would
not be applicable in the absence of an "investigation," or an
"examination" within the meaning of Section 7114(a)(2)(B). The record
demonstrated that Station Chief Davis' meeting with Mr. Culp and Mr.
Overby, involved no investigative effort on the part of the agency.
There was no examination of Mr. Culp, no questions were addressed to
him, and there is no indication in the record, that any investigation
into the prior insubordination was then contemplated. In fact, Station
Chief Davis refused a request to discuss the case at this point. He had
already decided that action should be taken against Mr. Culp for
refusing to obey his order. The meeting with Mr. Culp and Mr. Overby
was arranged solely for the purpose of advising Mr. Culp that
disciplinary action would be taken. The Respondent was under no
obligation to give the Union an opportunity to be represented at a
meeting wherein Station Chief Davis merely advised Mr. Culp and Mr.
Overby that disciplinary action was being initiated against Mr. Culp.
See United States Air Force, 2750th Air Base Wing Headquarters, Air
Force Logistics Command, Wright-Patterson Air Force Base, Ohio,
5-CA-736, 737, 738 and 805 (OALJ-81-135, July 15, 1981).
In view of the foregoing, it is unnecessary to determine whether,
under the provisions of Sections 7114(a)(2)(B), Mr. Culp would have been
entitled to a reasonable time to confer with Mr. Overby prior to meeting
with Station Chief Davis.
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Norfolk Naval Shipyard, Norfolk, Virginia, shall:
1. Cease and desist from:
(a) Requiring any bargaining unit employee of the Norfolk Naval
Shipyard, Norfolk, Virginia, to take part in an examination or
investigative interview in connection with an investigation,
without union representation, if such union representative has
been requested by the employee, and if the employee reasonably
believes that the examination or investigative interview may
result in disciplinary action against such employee.
(b) Discriminating against Michael David Culp in any manner in
order to discourage membership in, or activities on behalf of,
American Federation of Government Employees, AFL-CIO, Local 2225.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Expunge from Michael David Culp's personnel records, all
copies of letter of reprimand dated February 24, 1981, addressed
to Michael David Culp by Assistant Fire Chief Fred T. Richardson,
Norfolk Naval Base, Norfolk, Virginia.
(b) Post at its facilities at the Norfolk Naval Base, Norfolk,
Virginia, copies of the attached notice marked "Appendix" on forms
to be furnished by the Federal Labor Relations Authority. Upon
receipt of such forms, they shall be signed by the Commander of
the Norfolk Naval Base and shall be posted and maintained for 60
consecutive days thereafter in conspicuous places where notices
are customarily posted. Reasonable steps shall be taken by
Respondent to insure that such notices are not altered, defaced,
or covered by any other material.
(c) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal
Labor Relations Authority, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply
herewith.
LOUIS SCALZO
Administrative Law Judge
Dated: October 16, 1981
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT interfere with, restrain or coerce any bargaining unit
employee of the Norfolk Naval Base, Norfolk, Virginia in the exercise of
rights assured by the Federal Service Labor-Management Relations Statute
by requiring any bargaining unit employee to take part in an examination
or investigative interview in connection with an investigation, without
union representation, if such representation has been requested by the
employee, and if the employee reasonably believes that the examination
or investigative interview may result in disciplinary action against
such employee.
WE WILL NOT discriminate against any bargaining unit employee of the
Norfolk Naval Base, Norfolk, Virginia, in any manner in order to
discourage membership in, or activities on behalf of, American
Federation of Government Employees, AFL-CIO, Local 2225.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees of the Norfolk Naval Base, Norfolk, Virginia, in the
exercise of their rights assured by the Federal Service Labor-Management
Relations Statute.
WE WILL expunge from Michael David Culp's personnel records all
copies of letter of reprimand dated February 24, 1981, addressed to
Michael David Culp by Assistant Fire Chief Fred T. Richardson, Norfolk
Naval Base, Norfolk, Virginia.
(Agency or Activity)
Dated: . . . By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region 3,
whose address is: 1133 15th Street, N.W., Suite 300, Washington, D.C.,
20005, and whose telephone number is: (202) 653-8452.
--------------- FOOTNOTES$ ---------------
/1A/ The specific events which support the reasonableness of his
belief are summarized by the Administrative Law Judge at page 11 of his
decision.
/1/ In Paragraph 18 of the complaint it was alleged that, "by the
acts and conduct alleged above, Respondent has engaged in and is
engaging in unfair labor practices in violation of Section 7116(a)(1),
(2) and (8) of the Statute." This broad language was limited, as
outlined herein, by the complaint, and by counsel for the General
Counsel. See Tr. 14-20, and post-hearing brief filed by counsel for the
General Counsel.
/2/ Under authority provided in Section 2423.19(r) of the
Regulations, 5 C.F.R. 2423.19(r) the following corrections are made in
the hearing transcript:
page 132 line 3 change "on the first offense" to "in the first
instance"
Page 168 Line 6 Change "matter" To "nature"
/3/ The record reflects that on the same day Mr. Culp was also
involved in another pattern of insubordination with Captain Wilson
concerning the performance of work by another firefighter. (Tr.
121-122).
/4/ Mr. Tindel was called as a witness by the Respondent. He was
vague about what he said to Mr. Culp, but did corroborate Mr. Culp's
testimony to the effect that Mr. Tindel told Mr. Culp that Chief Davis
had admonished him. (Tr. 147-150).
/5/ The record disclosed that Mr. Culp and Station Chief Davis had a
discussion prior to January 23, 1981, concerning the subject of "getting
along with Captain Wilson," and concerning management problems. (Tr.
103-104).
/6/ Counsel for the General Counsel acknowledged that the second
portion of the charge dealing with an incident occurring on January 25,
1981, had no bearing on this case. (Tr. 10).
/7/ Bureau of Land Management, Richfield District Office, 7-CA-247
(OALJ-81-086, April 10, 1981).
/8/ G.C. Exh. 2, the letter of reprimand, reflects that Station Chief
Davis merely expressed his personal opinion "that he did not think it
was necessary to have a Union representative present."